Crane v. Dolihite ( 2021 )

Filed 10/22/21
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT
RICHARD J. CRANE,
F079877
Plaintiff and Appellant,
(Super. Ct. No. 14C0180)
v.
JOSEPH CLAY DOLIHITE, OPINION
Defendant and Respondent.
APPEAL from a judgment of the Superior Court of Kings County. Kathy
Ciuffini, Judge.
Richard J. Crane, in pro. per., for Plaintiff and Appellant.
No appearance for Defendant and Respondent.
-ooOoo-
Plaintiff Richard J. Crane, a self-represented prison inmate, appeals from the
dismissal of his personal injury action against an inmate who stabbed him in the neck
with a pencil. The dismissal was based on Crane’s failure to serve the summons and
complaint on the defendant inmate within the time prescribed by statute. (See Code Civ.
Proc., §§ 583.210, subd. (a) [plaintiff must serve a defendant within three years],
583.250.) 1
1 Subsequent unlabeled statutory references are to the Code of Civil Procedure.
Crane encountered difficulties in serving the summons and complaint on the
defendant inmate because (1) the defendant was transferred to Salinas Valley State Prison
in Monterey County; (2) for a time, Crane was unable to identify the defendant’s
location; (3) the superior court advised Crane to use the sheriff’s office to effect service
and, subsequently, the Monterey County Sheriff’s Office refused to serve the summons
and complaint; and (4) the litigation coordinator at Salinas Valley State Prison refused to
accept service on behalf of the defendant inmate. The litigation coordinator’s refusal
contradicts Penal Code section 4013, subdivision (a) and Code of Civil Procedure section
416.90, which have been interpreted as authorizing litigation coordinators at state prisons
to accept service on behalf of inmates. (Sakaguchi v. Sakaguchi (2009) 173 Cal.App.4th
852, 858–859 (Sakaguchi).)
On appeal, Crane contends the acts and omissions of prison officials and others
denied his right to meaningful access to the courts. We agree. The record on appeal
demonstrates Crane’s statutory right to initiate and prosecute a civil action (Pen. Code,
§ 2601, subd. (d)) has been infringed. Specifically, the record shows that official acts
frustrated Crane’s attempts to serve his civil action on the defendant inmate and that the
dismissal of the nonfrivolous action caused a miscarriage of justice. Based on this
showing, we conclude Crane’s statutory right of access to the courts was denied and do
not reach the constitutional aspects of Crane’s claim of error.
We therefore reverse the judgment and remand for further proceedings.
FACTS
On January 16, 2013, Crane was studying at a computer in a general educational
development (GED) class at the High Desert State Prison in Lassen County. Crane was
attempting to obtain a GED certificate for a parole board hearing. Defendant Joseph Clay
Dolihite approached Crane from behind and stabbed him in the neck with a pencil. The
pencil broke off in Crane’s neck on the second thrust. Dolihite then began punching
2.
Crane in the head and back. The instructor sounded an alarm and correctional officers
responded.
When interviewed by correctional officers, Dolihite stated he and Crane had been
arguing over the use of a computer and he waited for Crane to get busy, grabbed a pencil
out of his pocket, and tried to put it through Crane’s neck. Dolihite also told the officers
that Crane likes to run his mouth and Dolihite wanted to see how good a pencil would
look going through his throat, so he gave it a try. When asked if he was trying to kill
Crane, Dolihite stated that he did not expect the pencil to break.
Crane was taken to the prison’s emergency clinic, examined by medical staff, and
treated for the stab wounds, one of which was close to his jugular vein. Crane was placed
in administrative segregation and, after about a month, was released to Facility B at the
prison.
Crane alleges he was assaulted by two other prisoners and prison guards on March
1, 2013, which caused serious bodily injury. He sued the correctional officers in federal
court, alleging a violation of his civil rights under section 1983 of title 42 of the United
States Code. Crane contends the assaults are part of a conspiracy between prison guards
and inmates to retaliate against him for suing the warden and two captains for denying
outdoor exercise and staging assaults on inmates. (See Crane v. McDonald (E.D.Cal.
May 8, 2012, No. CIV S-11-0663 KJM CKO P) 2012 U.S.Dist. Lexis 64622 [order
concluding an Eighth Amendment denial of outdoor exercise claim was properly
alleged].) 2
2 Pursuant to Evidence Code sections 452, subdivision (c) and 459, we take judicial
notice of the existence of the December 2015 report issued by the Office of the Inspector
General entitled “2015 Special Review: High Desert State Prison, Susanville,
California,” but not the facts stated in the report. (See Licudine v. Cedars-Sinai Medical
Center (2016) 3 Cal.App.5th 881, 902 [court could take judicial notice of fact that Bureau
of Labor Statistics published report but not truth of facts stated in report].) The report
addressed practices at the prison with respect to excessive use of force against inmates,
3.
In June 2013, the Lassen County District Attorney filed a criminal complaint
against Dolihite charging him with attempted murder and alleging he had been convicted
of serious or violent felonies in 1983, 1994 and 2000. In October 2013, Dolihite plead
guilty to assault with a deadly weapon by a state prisoner in violation of Penal Code
section 4501. He was sentenced to a total of eight years—four years for the assault and
four years for the enhancement for prior convictions.
PROCEEDINGS
In June 2014, Crane filed a personal injury complaint against Dolihite in Kings
County Superior Court. In December 2014, the superior court filed an order stating it had
received a form for proof of service of the complaint and summons that had not been
completed to indicate when and how the defendant was served. The order also stated:
“The court does not serve civil complaints for litigants. Plaintiff will have to make
arrangements with the Sheriff Department at the county where defendant is located for
service of plaintiff’s complaint and summons.”
In January 2015, Crane prepared and signed a first amended complaint. It was
filed by the superior court on February 23, 2015, along with Crane’s motion for service
of the first amended complaint and summons pursuant to sections 413.30, 414.10 and
415.30. Crane asserted he was prevented from effecting service because of the
concealment of Dolihite’s address. Crane stated Dolihite’s address was not listed in the
information available through the online inmate locator maintained by the California
Department of Corrections and Rehabilitation (CDCR).
On March 2, 2015, the superior court filed an order rejecting Crane’s assertion that
Dolihite’s address was being concealed. The court had used CDCR’s online inmate
locator and found Dolihite’s location was available. The order also stated:
internal review of incidents involving the use of force against inmates, protecting inmates
from assault and harm by others, and treatment of disabled inmates.
4.
“This court has already informed plaintiff that the court does not serve civil
complaints for litigants. They are served by the Sheriff Department at the
county where defendant is located and plaintiff must make his own
arrangements for service.
“The plaintiff should consider that if service is achieved, defendant appears
and there is a need to serve additional pleadings on defendant, the plaintiff
will be required to comply with the requirements of California Code of
Regulations, tit. l5 section 3139. This regulation requires written
authorization from the warden before inmates may correspond with one
another. Institutional safety and security supports a regulation that requires
prior permission of the warden before an inmate may correspond with
another inmate. (Turner v. Safley (1987) 482 U.S. 78.) Should the warden
deny either inmate the right to correspond, this court would have no
alternative but to stay this litigation until the parties have been released
from their confinement (Payne v Superior Court (1976) 17 Cal.3d 908, 924,
927; Wantuch v Davis (1995) 32 Cal.App.4th 786, 792.)”
On May 4, 2015, Crane filed a motion for a 30-day extension of time to effect
service of the summons and complaint. Crane asserted he had been in touch with an
attorney who might take his case and, with the assistance of counsel, he should be able to
affect service of process without any further problems. Crane attached an April 9, 2015,
letter from the attorney, which stated he was trying to schedule a meeting with Crane for
the end of April. The attorney also raised concerns about proving up damages if Dolihite
defaulted and collecting the damages.
On May 8, 2015, Crane filed a motion to dismiss without prejudice or,
alternatively, to stay proceedings pending his release from prison. The motion referred to
an order to show cause regarding his failure to appear at a case management conference
and the possible dismissal of the case. Crane stated he had not received notice of any
scheduled conference. Crane asserted he had become aware that he would be unable to
pursue the case without counsel because he was incarcerated and could not serve Dolihite
or prosecute the case properly. Crane requested that the court not order his appearance in
court because that would disrupt his job and placement, which were necessary for him to
become eligible for release. The superior court granted Crane’s request to stay the
5.
lawsuit, setting a case management conference for May 17, 2016, and vacating a June
2015 hearing on the order to show cause. Effectively, the case was stayed for one year.
A year later, the May 2016 case management conference was held. The results of
that conference are not shown in the clerk’s transcript or the register of actions. Five
days before the conference, Crane had filed a motion to extend the stay of proceedings
for another year based on his belief that he was going to be released from prison and then
would be able to effectively prosecute his case. He also notified the court his address had
changed to the California State Prison, Los Angeles County, in Lancaster. It appears
Crane’s motion was granted because the next case management conference was
scheduled for a year later, in May 2017.
Crane failed to appear at the May 2017 conference, and the superior court issued
an order to show cause. In response, Crane filed a motion stating that, six days in
advance, he was advised the CourtCall hearing was scheduled, he was in lockdown
conditions at the time, he relied on prison officials to call him, and the CourtCall never
took place. Crane asked for relief from any default and requested a 90-day extension to
file a motion for a continuance of the stay.
The ruling on Crane’s motion is not contained in the clerk’s transcript. However,
six months later, in November 2017, Crane filed another motion to extend the stay of
proceedings for 90 more days pending resolution of a pending federal case, Richard J.
Crane v. Rodriguez, et al. (E.D.Cal. No. 2:15-CV-00208-TLN-KJN). The superior court
granted Crane 90 days to obtain approval from the warden to communicate by mail with
Dolihite for the purpose of serving the summons and complaint.
In February 2018, Crane filed a motion for a further extension of time that
described the difficulties he was having in communicating with the warden about his
request to correspond with Dolihite. The motion stated that on January 22, 2018, Crane
had submitted a CDCR form 22, request for interview. A copy of the form was attached
to the motion. In the form’s topic box, Crane typed “WARDEN’S PERMISSION TO
6.
SUE.” In section A of the CDCR form 22, Crane stated that, pursuant to a court order, he
needed to obtain permission from the warden to serve inmate Dolihite with the complaint.
Crane requested permission as soon as possible, stating he had to file a case management
statement by February 14, 2018.
Section B of the CDCR form 22, staff response, was completed by Sergeant
Torres on January 30, 2018, and stated the request would be forwarded to the litigation
coordinator. On February 5, 2018, Crane completed section C, request for supervisor
review. Crane referred to his court deadline of February 14, 2018, and asserted the
absence of a response was denying him access to the court in this lawsuit.
Besides submitting a CDCR form 22, Crane mailed the warden a letter stating the
superior court had ordered him “to obtain the Warden’s permission to sue Joseph Clay
Dolihite by mail because he is an inmate in CDCR.” Crane included a self-addressed,
stamped envelope for the warden’s response.
Crane’s February 2018 motion for a further extension of time stated he had not
received a response to his letter to the warden and also asserted his legal mail was being
obstructed or lost. His motion asked the superior court for more time to obtain the
warden’s approval.
Later that February, the superior court filed an order extending the time for Crane
to receive permission from the warden to correspond with Dolihite so that Dolihite could
be served. The order noted the June 2014 filing date of the complaint and the one-year
stay issued in May 2015. It then stated, “this case is fast approaching the three year bar
on service of a summons set forth in Code of Civil Procedure sections 583.210 and
583.250” and gave Crane “until March 3, 2018, to file the response from the warden to
[his] request to correspond with defendant for the purposes of pursuing this lawsuit.”
The order also stated the issue would be addressed further at a case management
conference scheduled for March 8, 2018. Crane’s case management statement was filed
a day before the conference and indicated permission from the warden was still pending.
7.
Over the course of the next year, several case management conferences and
hearings on orders to show cause were scheduled. Often, Crane did not appear and
subsequently asserted he had been denied access to CourtCall. During that year, Crane
kept the superior court apprised of the fact he had not received any reply to his CDCR
form 22 or his letter to the warden. Crane also repeated his earlier request that the court
order service of the complaint on Dolihite.
In March 2019, the superior court filed another order to show cause relating to
Crane’s failure to appear at a case management conference and failure to serve the
complaint. Before the April 2019 hearing on the order to show cause, Crane filed an
application for extension of time to serve pleading and an order continuing the case
management conference using optional Judicial Council form CM-020. The application
stated Crane had “received endorsed summons to serve with the complaint and waiver of
service forms notice of return receipt with a Self-Addressed postage paid envelope to the
Monterey County Sheriff requesting service by the Sheriff process server on February 14,
2019. No response was received.” At the end of the form CM-020, the court signed an
order stating (1) the case management conference would remain scheduled on April 26,
2019, and (2) CourtCall was approved for Crane on that date. Subsequently, the court
rescheduled the conference for June 26, 2019.
On April 29, 2019, Crane filed another application on Judicial Council form CM-
020 for extension of time to serve pleading that explained what had happened with his
attempt to complete service through the sheriff’s office. Crane stated he had mailed the
first amended complaint to the Monterey County Sheriff’s Office requesting service on
Dolihite and he received back from the Civil Division of the Monterey County Sheriff’s
Office a “Notice of Action Taken.” The notice stated the sheriff’s office was unable to
process Crane’s request and gave its reason by stating: “Please contact Soledad State
Prison to serve inmates at their facilities.” The notice listed the return date as March 4,
2019.
8.
Crane’s application described his response to the notice from the sheriff’s office.
Crane stated he promptly mailed all documents to the Salinas Valley State Prison, which
is near Soledad. The reaction of prison officials is set forth in an April 23, 2019 letter
from G. Lopez, a litigation coordinator at Salinas Valley State Prison. The letter
informed Crane that his legal correspondence was being returned “for the following
reasons: [¶] *Improper Service and the Litigation office does not serve or accept service
for other inmates.”
Crane’s April 2019 application for an extension of time to serve the pleading was
denied by the superior court. The court’s order stated the summons and complaint must
be served by June 14, 2019, and confirmed the June 26, 2019, hearing date for the case
management conference. The order also stated: “There is no evidence in the record that
prison officials are thwarting Plaintiffs efforts to serve defendant. There is no good cause
shown to issue the order. Plaintiff has had numerous opportunities to serve Defendant
over the past four years.” The order made no reference to a sheriff’s statutory duty to
serve process in a civil action and no reference to a litigation coordinator’s duty to accept
service on behalf of inmates. Those duties are discussed in part I.B. of this opinion.
On June 26, 2019, the superior court held a hearing and Crane appeared through
CourtCall. The minute order from the hearing stated Crane had not accomplished proof
of service on the defendant. The court dismissed the case with prejudice. Crane filed this
appeal.
DISCUSSION
I. APPLICABLE LEGAL PRINCIPLES
A. Right of Access to the Courts
Crane’s theory of superior court error is based on a denial of his right of access to
the courts—a right with both statutory and constitutional dimensions. The federal and
state Constitutions guarantee the right of access to the courts to all persons, including
9.
prisoners. (Smith v. Ogbuehi (2019) 38 Cal.App.5th 453, 465 (Smith).) In addition, a
California statute grants state prisoners the right “[t]o initiate civil actions” as plaintiffs.
(Pen. Code, § 2601, subd. (d).) This statute has been interpreted to afford state prisoners
a right of meaningful access to the courts to both initiate and prosecute civil actions.
(Smith, supra, at p. 465.) Under Penal Code section 2601, subdivision (d), “ ‘a prisoner
may not be deprived, by his or her inmate status, of meaningful access to the civil courts
if the prisoner is both indigent and a party to a bona fide civil action threatening his or her
personal or property interests.’ ” (Smith, supra, at p. 465.)
The reference to a bona fide civil action threatening the prisoner’s interest is
derived from a Supreme Court decision in which the prisoner was a defendant in a civil
action. (See Payne v. Superior Court, supra, 17 Cal.3d at pp. 912, 927 [writ of mandate
directed trial court to vacate order denying defendant prisoner’s motion for relief from
default judgment of $24,722].) In Payne, the court stated the right of access to the courts
“comes into existence only when a prisoner is confronted with a bona fide legal action
threatening his interests.” (Id. at p. 924.) This statement was tailored to a prisoner who
was a defendant. When a prisoner is a plaintiff in a civil action, we interpret the clause
“ ‘a party to a bona fide civil action threatening his or her personal or property interests’ ”
(Smith, supra, 38 Cal.App.5th at p. 465) to mean a bona fide civil action seeking relief
for a nontrivial injury to the prisoner’s personal or property interests.
In Smith, we followed earlier decisions and adopted a three-step inquiry for trial
courts to use in determining whether to take measures to protect an indigent prisoner’s
right of meaningful access to the courts. (Smith, supra, 38 Cal.App.5th at pp. 466–467.)
First, the court determines whether the prisoner is indigent. (Id. at p. 466.) Second, the
court determines whether the lawsuit involves a bona fide threat (or seeks relief for a
bona fide injury) to the prisoner’s personal or property interests. (Ibid.) Third, if the first
two conditions are met, the court considers what measures are available to protect the
prisoner’s right of meaningful access to the courts. (Id. at pp. 466–467.)
10.
A nonexclusive list of measures to ensure indigent prisoners are afforded
meaningful access to the courts include “(1) deferral of the action until the prisoner is
released; (2) appointment of counsel for the prisoner; (3) transfer of the prisoner to court
to attend hearings or the trial; (4) utilization of depositions in lieu of personal
appearances; (5) holding of trial in prison; (6) conducting status and settlement
conferences, hearings on motions and other pretrial proceedings by telephone; (7)
propounding of written discovery; and (8) use of closed circuit television or other modern
electronic media.” (Smith, supra, 38 Cal.App.5th at p. 467, italics omitted.) In addition,
trial courts may implement other innovative, imaginative procedures. (Ibid.) 3 When
deciding the appropriate measure or measures to assure access, the relevant
circumstances include the practicality and effectiveness of the various measures available
to protect the prisoner’s right of access to the courts. (Smith, supra, at p. 467.)
B. Service of Process
Service of process on a defendant is an important step in obtaining access to the
remedies available through the court system. The “formal service of process performs
two important functions.” (Rockefeller Technology Investments (Asia) VII v. Changzhou
SinoType Technology Co., Ltd. (2020) 9 Cal.5th 125, 139.) First, from the court’s
perspective, service of process asserts jurisdiction over the person. (Ibid.) Obtaining
personal jurisdiction is important because a trial court can enter a valid judgment only if
it has both jurisdiction of the person and jurisdiction of the subject matter. (Id. at p. 138.)
Second, from a defendant’s perspective, service of process provides notice of the pending
action and gives the defendant an opportunity to present a defense. (Id. at p. 139.) Thus,
3 Based on this list of specific measures and the broad description of other
procedures, we conclude the superior court’s March 2015 order misstated the options
available when it stated: “Should the warden deny either inmate the right to correspond,
this court would have no alternative but to stay this litigation until the parties have been
released from their confinement (Payne v. Superior Court[, supra,] 17 Cal.3d 908, 924,
927; Wantuch v. Davis[, supra,] 32 Cal.App.4th 786, 792.)”
11.
service of process protects a defendant’s due process right to defend against an action by
providing constitutionally adequate notice of the court proceeding. (Ibid.)
“ ‘Process’ signifies a writ or summons issued in the course of a judicial
proceeding.” (§ 17, subd. (b)(7).) Service of a summons is governed by a five-article
chapter in California’s Code of Civil Procedure. (§§ 413.10–417.40.) “[C]ompliance
with the statutory procedures for service of process is essential to establish personal
jurisdiction.” (Dill v. Berquist Construction Co. (1994) 24 Cal.App.4th 1426, 1444
[judgment against a defendant who was not served with a summons in the manner
prescribed by statute is void].)
1. Who May Serve a Summons
“[A]ny person who is at least 18 years of age, and not a party to the action” may
serve a summons. (§ 414.10.) A summons may be served by a private individual
meeting these requirements, by a professional process servicer, or by certain peace
officers. (See Bus. & Prof. Code, § 22350 [registration of professional process servers],
Gov. Code, § 26665 [marshals and sheriffs authorized to serve process in civil actions].)
Government Code section 26608 states that “[t]he sheriff shall serve all process
and notices in the manner prescribed by law.” (Italics added; see 42A Cal.Jur.3d (2016)
Law Enforcement, § 167, p. 269.) The predecessor of this provision, which also referred
to “all process,” was interpreted to require a sheriff “to serve all process and notices
directed to him, or placed in his hands for service, which the law commands him to serve
when addressed or handed to him.” (Golden Gate Hydraulic Mining Co. v. Superior
Court (1884) 65 Cal. 187, 190; see Ayres v. Burr (1901) 132 Cal. 125, 129 [“sheriff is
required to serve all writs and other process coming to him which are regular on their
face”].) The fee payable to a sheriff for serving process in a civil action is set by statute
at $40. (Gov. Code, §§ 26720.9, 26721.)
12.
2. Who May be Served
Generally, “[i]ndividual defendants are served by delivering copies of the
summons and complaint to them personally or to someone else authorized by law to
accept service on their behalf.” (Weil & Brown, Cal. Practice Guide: Civil Procedure
Before Trial (2021) ¶ 4:122, p. 4-17.) The option of serving someone other than the
individual defendant is addressed in section 416.90, which states: “A summons may be
served on a person not otherwise specified in this article by delivering a copy of the
summons and of the complaint to such person or to a person authorized by him to receive
service of process.” “The Judicial Council comment regarding this section explains,
‘Service is made by delivering, in a manner specified in Section 413.10, a copy of the
summons and of the complaint to such person personally or to his agent. [¶] If process is
delivered to an agent of defendant, such agent must be one who is authorized by law or
by appointment to receive service of process.’ ” (Sakaguchi, supra, 173 Cal.App.4th at p.
858, italics added.)
Based on section 416.90 and the related comment, we consider whether California
law authorizes anyone to accept service on behalf of a prisoner. Penal Code section
4013, subdivision (a) states that a “jailer upon whom a paper in a judicial proceeding,
directed to a prisoner in his or her custody, is served, shall forthwith deliver it to the
prisoner, with a note thereon of the time of its service. For a neglect to do so, he or she is
liable to the prisoner for all damages occasioned thereby.” This provision does not
explicitly state a jailer or official at a state prison is authorized to accept service on behalf
of a prisoner. Nonetheless, the mandatory duty to “forthwith deliver” the papers to the
prisoner strongly implies that jailers are required to accept service in the first place.
Accepting this implication, the court in Sakaguchi, supra, 173 Cal.App.4th 852,
interpreted Penal Code section 4013, subdivision (a) to mean a “jailer is authorized by
law to receive service of process on behalf of a prisoner in his or her custody.”
(Sakaguchi, supra, at p. 858.)
13.
In Sakaguchi, the plaintiff “served process on the litigation unit coordinator at
Avenal State Prison in accordance with the procedures for service by mail set out in
section 415.30.” (Sakaguchi, supra, 173 Cal.App.4th at p. 859.) The litigation
coordinator signed and dated (1) the notice and acknowledgement of receipt included
with the summons and complaint and (2) a proof of service of summons form, which
declared she had personally delivered the summons and complaint to the defendant
prisoner. (Ibid.) The court concluded the plaintiff “complied with the statutory
requirements for service of process.” (Ibid.)
Sakaguchi provides another example of proper service. The plaintiff’s attorney
mailed a statement of damages to the defendant, care of the litigation coordinator, along
with a notice and acknowledgement of receipt form. (Sakaguchi, supra, 173 Cal.App.4th
at p. 859.) The litigation coordinator signed and returned the notice and
acknowledgement of receipt. (Id. at pp. 860–861.) The court concluded that “[t]his
procedure complies with the statutory scheme for effective service on an inmate in a state
prison.” (Id. at p. 861.)
3. Methods of Service
Sakaguchi illustrates one of the four usual methods for serving process—that is,
service by mail coupled with an acknowledgement of receipt in accordance with section
415.30. The other three usual methods for completing service within California are (1)
personal delivery to the defendant or someone authorized by law to accept the summons
on the defendant’s behalf (§ 415.10); (2) delivery to someone else at the defendant’s
usual residence or place of business (§ 415.20); and (3) service by publication (§ 415.50).
In addition, section 413.30 states: “Where no provision is made in this chapter or other
law for the service of summons, the court in which the action is pending may direct that
summons be served in a manner which is reasonably calculated to give actual notice to
the party to be served and that proof of such service be made as prescribed by the court.”
14.
Thus, when none of the four usual methods of service is available, the trial court has the
discretion to authorize service by another means.
For purposes of this appeal, we consider how service of process might have been
effected through the sheriff’s office, either on Dolihite personally or on the litigation
coordinator as a person authorized by law to accept service on behalf of a prisoner. We
also consider how service might have been completed by mail.
Section 14010.7 of the Department Operations Manual (2021) of CDCR (DOM)
states: “Service of any documents used in civil proceedings (except subpoenas) is
referred to as service of legal process in this section. The documents shall be handled in
accordance with the provisions of this section anytime an employee receives such
service.” Service of legal process upon inmates is addressed in section 14010.7.4 of the
DOM, which states that it does “not preclude the proper service of papers by a sworn
peace officer escorted into a security area.” (Ibid.) Section 14010.7.4 of the DOM also
sets forth ways service on the inmate may be completed. First, “[s]taff may accept the
papers from the process server and then complete the service on the inmate.” (Ibid.)
Second, “[a] sworn peace officer may be escorted into the security area to complete
service of the papers.” (Ibid.) In addition, “[i]f a request for service is received by mail,
institution staff shall serve the papers and complete the verification of service. If a fee
accompanied the request for service, the fee shall be returned with the verification of
service.” (Ibid.) Regardless of whether a litigation coordinator is physically handed
process as a someone authorized by law to accept service on behalf of an inmate or is
served by mail pursuant to section 415.30, the litigation coordinator has a duty to
“forthwith deliver [the papers] to the prisoner, with a note thereon of the time of its
service.” (Pen. Code, § 4013, subd. (a).)
15.
II. DENIAL OF CRANE’S RIGHT OF ACCESS TO THE COURTS
Crane contends he was denied his right of access to the courts and, therefore, the
dismissal of his lawsuit should be reversed. Our first step in analyzing this contention is
deciding a legal issue about what test should be used to determine whether a denial of the
right of access occurred.
A. Test for Denial of Access
In Lewis v. Casey (1996) 518 U.S. 343 (Lewis), the United States Supreme Court
considered what a prisoner must allege to state a civil rights claim based on a denial of
the constitutional right of access to the courts. (Id. at p. 346.) The court concluded that a
prisoner must allege actual injury to state such a claim. (Id. at p. 349.) In describing the
actual injury requirement, the court stated a prisoner must “demonstrate that a
nonfrivolous legal claim had been frustrated or was being impeded.” (Id. at p. 353, fns.
omitted.)
We recognize Lewis is distinguishable from the present case because it involved a
lawsuit in which the cause of action alleged a denial of the right of access to the courts,
not a lawsuit where a dismissal on procedural grounds (i.e., a failure to serve process
within three years) arguably denied the plaintiff’s right of access to the courts. Lewis also
is distinguishable because it addressed the constitutional right of access to the courts.
Here, we do not reach the constitutional questions because our analysis is based on the
statutory right set forth in Penal Code section 2601, subdivision (d). (See generally,
California Chamber of Commerce v. State Air Resources Bd. (2017) 10 Cal.App.5th 604,
631, fn. 19 [under the constitutional avoidance doctrine, it is prudent to address a
statutory ground to avoid reaching a constitutional ground].) Despite these distinctions,
we conclude the elements that must be alleged to state a federal civil rights claim provide
guidance for defining the appropriate test for whether a denial of the statutory right of
access occurred in this case.
16.
The elements of a federal civil rights claim include (1) actual injury, (2) official
acts frustrating the litigation, and (3) a remedy that may be awarded as recompense that is
not otherwise available in a future suit. (Christopher v. Harbury (2002) 536 U.S. 403,
413–414.) Adapting these elements to a denial of the statutory right to prosecute a civil
action (Pen. Code, § 2601, subd. (d)), we conclude the prisoner must show (1) official
acts frustrating the litigation and (2) an actual injury that satisfies the standard used in
civil cases for a miscarriage of justice. To demonstrate actual injury, the prison must
show the loss or impairment of a nonfrivolous cause of action. (Christopher v. Harbury,
supra, at p. 416.) Such a showing entails describing the cause of action well enough to
apply the nonfrivolous requirement and determine the cause of action is more than a
hope. (Ibid.) In addition, to establish a miscarriage of justice, the prisoner must show it
is reasonably probable that a result more favorable to him or her would have been
reached in the absence of the denial of access. (See Soule v. General Motors Corp.
(1994) 8 Cal.4th 548, 574.)
B. Application of Test
1. Actual Injury
Here, the record establishes the actual injury element of the test for a denial of a
prisoner’s right of access to the courts. Crane lost his personal injury cause of action
when the lawsuit was dismissed with prejudice. That cause of action easily qualifies as
nonfrivolous because Dolihite plead guilty to assault with a deadly weapon. (See
Yarbrough v. Superior Court (1985) 39 Cal.3d 197, 205 [collateral estoppel effect of
judgment of conviction in subsequent civil proceeding]; Evid. Code, § 1300.)
Accordingly, Crane has shown it is reasonably probable that a result more favorable than
the dismissal would have been reached if the lawsuit had not been dismissed.
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2. Official Acts Frustrating the Litigation
The next element we address whether official acts frustrated Crane’s pursuit of the
lawsuit against Dolihite—specifically, his attempts at service—and caused the dismissal.
In conducting this inquiry, we conclude the term “official acts” includes the acts and
omissions of prison officials, the superior court, and the Monterey County Sheriff’s
Office. In other words, this element of a denial of access contention is determined from
the perspective of the inmate and the acts of various officials are not viewed in isolation.
First, we consider the combined impact of the superior court’s statement that
Crane “will have to make arrangements with the Sheriff Department at the county where
defendant is located for service of plaintiff’s complaint and summons” and the reaction of
the Monterey County Sheriff’s Office to Crane’s attempt to have that office serve the
summons and complaint on Dolihite. The superior court’s statement was undoubtedly
based on its understanding of a sheriff’s statutory duty to serve process in civil actions
(Gov. Code, § 26608) and its experience with the Kings County Sheriff’s Office. Many
prisoner lawsuits are filed in Kings County Superior Court and service on defendant
prison officials often is completed by the sheriff’s office. Typically, a sheriff’s deputy
personally delivers the summons and complaint (or writ) to the litigation coordinator at
the prison and files a proof a service with the court, 4 a method that is consistent with the
provisions in the DOM addressing service of process. Thus, the superior court’s
statement about making arrangements with the sheriff’s office to serve process accurately
4 As an example, in the nonpublished opinion Foster v. Sexton (Sept. 25, 2019,
F078480) the sheriff’s deputy (1) served the warden at Corcoran State Prison by
personally delivering the writ to the litigation coordinator at the prison and (2) filed a
proof of service on Judicial Council form POS-010 on October 9, 2018. The proof of
service stated the litigation coordinator was authorized to receive service on behalf of the
warden. We take judicial notice of the proof of service, which appears at page 61 of the
clerk’s transcript in that appeal. (Evid. Code, §§ 452, 459.)
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identified a procedure for completing service. 5 The problem in this case arose because
the court assumed the Monterey County Sheriff’s Office would handle service of process
in the same or a similar manner as the Kings County Sheriff’s Office.
The Monterey County Sheriff’s Office responded to Crane’s request by returning
his documents with a “Notice of Action Taken” informing Crane that “WE ARE
UNABLE TO PROCESS YOUR REQUEST FOR THE REASON(S) INDICATED
BELOW.” The only reason given stated: “Please contact Soledad State Prison to serve
inmates at their facilities.” We note that a preprinted part of the notice form referred to
errors in the documents, but no errors in Crane’s documents were identified in the notice
sent to Crane.
Consequently, the sheriff’s office refused to complete service by delivering the
summons and complaint to the litigation coordinator at Salinas Valley State Prison as a
person authorized by law to accept service on behalf of a prisoner (see Code Civ. Proc., §
416.90; Pen. Code, § 4013, subd. (a)) or, alternatively, serving Dolihite personally while
being escorted by prison staff into a security area (DOM, § 14010.7.4). Thus, the
combined effect of the superior court’s order stating Crane would have to make
arrangements with the sheriff’s office to serve the summons and complaint and that
office’s refusal to serve the documents had the combined effect of frustrating Crane’s
attempt to serve process on Dolihite.
Second, we consider the manner in which prison officials at the California State
Prison, Los Angeles County handled Crane’s request for permission to correspond with
5 The court’s informing Crane that service could be completed using the sheriff’s
office did not violate the duty of impartiality and was consistent with its responsibility of
treating litigants fairly. It is ethically permissible for judges to accommodate self-
represented litigants by explaining court procedures, such as service of process, so long
as the court provides such guidance to all parties. (Rothman, et al., California Judicial
Conduct Handbook (4th ed. 2017) § 2:28, pp. 99-100; see generally, Nuño v. California
State University, Bakersfield (2020) 47 Cal.App.5th 799, 809–810 [judge’s
responsibilities in communicating with self-represented litigants].)
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Dolihite. Other than informing Crane that his request was being forwarded to the
litigation coordinator, Crane received no response. This lack of a response further
frustrated Crane’s attempt to serve Dolihite because the superior court informed Crane
that he needed to obtain such permission to serve Dolihite by mail. 6 By requiring Crane
to obtain permission, the superior court required him to do something that was beyond his
control. The combined effect of the superior court’s stating permission was necessary
(regardless of whether it was true) and the failure of prison officials to respond to Crane
had the actual effect of frustrating Crane’s service of the summons and complaint.
Third, we consider the April 23, 2019 response of G. Lopez, a litigation
coordinator at Salinas Valley State Prison, to Crane’s mailing of the summons and
complaint in an attempt to serve Dolihite. The litigation coordinator’s letter advised
Crane that the materials were being returned because of (1) “Improper Service” and (2)
“the Litigation office does not serve or accept service for other inmates.” The litigation
coordinator’s statement that the litigation office does not accept service for inmates is
contrary to a literal reading of section 14010.7.4 of the DOM and, moreover, is contrary
to the responsibilities imposed by Penal Code section 4013, subdivision (a) as interpreted
by the court in Sakaguchi, supra,173 Cal.App.4th 852. Under the statute, the litigation
coordinator “upon whom a paper in a judicial proceeding, directed to a prisoner in his or
her custody, is served, shall forthwith deliver it to the prisoner, with a note thereon of the
time of its service.” (Pen. Code, § 4013, subd. (a).) Construing the word “shall” in
6 For purposes of this appeal, we do not address whether section 3139 of title 15 of
the California Code of Regulations, which requires inmates to obtain written
authorization “to correspond” with any inmate held in a state or federal correctional
facility, requires prior permission to serve a summons and complaint by mail. It may be
that prison officials do not interpret “to correspond” to encompass the mailing of a
summons and complaint to a litigation coordinator at the prison where the defendant
inmate is incarcerated. We refrain from addressing this issue because no prison official
has appeared in this lawsuit and taken a position about how the regulation is interpreted
and provided a rationale for that interpretation.
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“according to the context and the approved usage of language” (Pen. Code, § 7, subd.
16), we conclude “shall” denotes a mandatory obligation. (See People v. Perez (2021) 67
Cal.App.5th 1008, 1014 [“shall” is ordinarily construed as mandatory and its use in Pen.
Code § 1473.7, subd. (b)(1) established a mandatory rule].) Accordingly, the litigation
coordinator’s refusal to deliver the summons and complaint violated Penal Code section
4013 and further frustrated Crane’s attempts to serve Dolihite.
The foregoing circumstances adequately demonstrate that official acts and
omissions have frustrated Crane’s pursuit of the lawsuit against Dolihite. Specifically,
those acts and omissions have impeded his attempts to serve Dolihite with the summons
and complaint. Therefore, we conclude Crane has established the dismissal of his lawsuit
for failure to effect service of process violated his statutory right of access to the court to
prosecute a civil action. (Pen. Code, § 2601, subd. (d).)
D. Harmonizing the Statutes
Next, we consider how the violation of an indigent prisoner’s statutory right of
access pursuant to Penal Code section 2601, subdivision (d) affects the calculation of the
three-year period for service of process. Section 583.210, subdivision (a) requires a
plaintiff to serve “a defendant within three years after the action is commenced against
the defendant.” A lawsuit “is commenced” when the complaint is filed. (Ibid.)
The calculation of the three-year period is subject to section 583.240, which lists
four conditions that result in the exclusion of time from the three-year period. Two of
those conditions are relevant to this litigation. First, time is excluded when “[t]he
prosecution of the action or proceedings in the action was stayed and the stay affected
service.” (§ 583.240, subd. (b).) Second, time is excluded if “[s]ervice ... was
impossible, impracticable, or futile due to causes beyond the plaintiff’s control.”
(§ 583.240, subd. (d)). Ordinarily, these conditions “must be construed strictly against
the plaintiff.” (Shipley v. Sugita (1996) 50 Cal.App.4th 320, 326.) However, when an
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indigent prisoner establishes a denial of his statutory right of access to the courts, we
conclude a strict construction is inappropriate. The statutory right of access to the courts,
which has constitutional foundations, is more important that the procedural requirement
established for the efficient operation of the courts. Accordingly, we conclude the
statutory time limits for service should be construed to protect rather than deny the right
of access. As a result, the time during which official acts frustrated the service of process
and denied an indigent prisoner his statutory right of access to the courts qualifies as time
during which service was “impracticable[] or futile due to causes beyond the plaintiff’s
control.” (§ 583.240, subd. (d).)
Applying the foregoing statutory interpretation to the facts of this case raises
several issues. Some of those issues need not be resolved because time excluded on other
grounds supports the determination that the three-year period has not expired.
The complaint was filed on June 19, 2014, and the superior court dismissed the
action five years and one week later, on June 26, 2019. A stay was in effect for one year,
from May 2015 until May 2016. Therefore, that year is excluded pursuant to subdivision
(b) of section 583.240. The stay might have been continued for another year until May
2017, but this is a question that need not be resolved. In January 2018, Crane submitted
his CDCR form 22 and sent a letter to the warden seeking permission to correspond with
Dolihite for purposes of pursuing this lawsuit. As discussed earlier, the lack of a
response to Crane’s request, the sheriff’s office refusal to serve Dolihite, and the
litigation coordinators refusal to accept service pursuant to Penal Code section 4013,
subdivision (a) had the combined effect of frustrating Crane’s attempts to serve Dolihite.
This period of frustration, from January 2018 through the dismissal in June 2019, lasted
17 months. When the one-year stay and this 17-month period are excluded from the
calculation of the time passed since the filing of the complaint, only two years and seven
months count against the three-year period.
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Consequently, we conclude the three-year period for service of process has not
expired and dismissal is not mandatory under section 583.250, subdivision (b).
Accordingly, the dismissal of must be reversed.
C. Judicial Relief
The last subject we address is the appropriate relief on appeal. A reversal and
remand are necessary and, therefore, the question presented is what directions should be
given to the superior court for conducting those further proceedings. The statutory
authority for such directions includes section 43, which states that an appellate court
“may affirm, reverse, or modify any judgment or order appealed from, and may direct the
proper judgment or order to be entered, or direct … further proceedings to be had.”
(Italics added.) Section 906 defines the powers of a reviewing court in a similar way,
stating the court “may, if necessary or proper, direct … further proceedings to be had.”
Under these provisions, our task is to determine what further proceedings on remand are
“necessary or proper.” (§ 906.)
In exercising the discretionary authority granted by sections 43 and 906, we
consider whether Crane is eligible for the measures that may be implemented to protect
an indigent prisoner’s right of meaningful access to the courts. (Smith, supra, 38
Cal.App.5th at p. 467.) To be eligible, Crane must establish (1) his indigency and (2) the
bona fide nature of his personal injury lawsuit. (Id. at p. 466.)
We conclude Crane has established both elements. First, in September 2019,
Crane submitted a request to waive court fees on mandatory Judicial Council form FW-
001, which this court granted. The information in Crane’s request is sufficient to show
he qualifies as indigent for purposes of obtaining a discretionary measure to protect his
right of access to the courts. Second, Crane has established that his civil action is bona
fide based on Dolihite’s guilty plea and that it seeks relief for nontrivial injuries resulting
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from being stabbed in the neck. Accordingly, we conclude Crane is eligible for measures
that protect the right of access to the courts.
One of the specific discretionary measures that might be implemented to resolve
the problem of serving process on another inmate is the appointment of counsel for
Crane. (See Smith, supra, 38 Cal.App.5th at p. 467 [list of eight discretionary measures
available to trial courts]; see Yarbrough v. Superior Court, supra, 39 Cal.3d at p. 207
[power of trial court to appoint attorney to represent an incarcerated civil defendant].)
The other specific measures do not apply to the problem of service; however, the general
statement that a court may implement “other innovative, imaginative procedures”
(Wantuch v. Davis, supra, 32 Cal.App.4th at p. 793; Smith, supra, at p. 467) allows the
consideration of ways to complete the service of process other than appointing an
attorney.
1. Appointment of Counsel
Other ways of completing service of process are significant because, as a practical
matter, it may be difficult to appoint an attorney to represent Crane. In particular, the
superior court might be unable to find an attorney willing to accept an appointment—
either on a pro bono basis or on a contingency fee or other arrangement acceptable to
both Crane and the attorney. We note the probability of locating an attorney willing to
accept a pro bono appointment might increase if the appointment is not for the entire
case. The self-help website maintained by the California’s judicial branch describes
limited-scope representation, which sometimes is called “unbundling” or “discrete task
representation,” and involves an attorney handling only one or a few aspects of a case.
( [as of Oct. 18, 2021].) Thus, the discretionary
measures available to the trial court include appointing a willing attorney for the limited
purpose of effecting service of process.
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In sum, because of the potential difficulties in appointing counsel for Crane, even
for the limited purpose of completing service, our directions for further proceedings on
remand will not require, but do not foreclose, appointing counsel to resolve the problem
of service of process. In other words, the superior court’s discretionary authority
includes other measures that can be used to complete service of process and effectuate
Crane’s statutory right of access to the court.
2. Service by Mail by the Clerk’s Office
Another, simpler procedure available to the trial court is to direct the clerk of court
to effect service by mailing a summons and the complaint to the litigation coordinator at
the prison where Dolihite is being held in accordance with the requirements of section
415.30. Those requirements include sending two copies of a Notice and
Acknowledgement of Receipt–Civil (mandatory Judicial Council form POS-015) and “a
return envelope, postage prepaid, addressed to the sender.” (§ 415.30, subd. (a).)
Because the litigation coordinator at Salinas Valley State Prison previously refused to
accept service on behalf of Dolihite, an order or cover letter could be included (1)
referring to the mandatory obligation under Penal Code section 4013, subdivision (a); (2)
stating that subdivision was interpreted in Sakaguchi, supra, 173 Cal.App.4th 852, as
applying to litigation coordinators at a state prison; and (3) requesting the litigation
coordinator to serve the papers on Dolihite and complete and return the related
paperwork to the clerk of court.
3. Other Methods of Service
Another possibility is for the superior court to invoke its authority under section
413.30 and “direct that summons be served in a manner which is reasonably calculated to
give actual notice to the party to be served and that proof of such service be made as
prescribed by the court.” The court might be able to identify an innovative method for
25.
effecting service of the summons and complaint and section 413.30 provides the statutory
authority for implementing that method.
4. Summary
There are multiple ways the superior court could ensure that service of process is
completed, and this personal injury lawsuit moves forward. We will not direct the court
to implement a particular measure. Instead, we will direct the court to adopt a measure
that accomplishes service of the summons and complaint. That measure may be the
appointment of counsel, service by the clerk of court pursuant to section 415.30, or some
other measure, so long as the measure is effective in achieving service. 7
DISPOSITION
The judgment is reversed. The matter is remanded to the trial court for further
proceedings that accomplish service of the summons and complaint and are not
inconsistent with this opinion. As no respondent appeared in this case, no costs on appeal
are awarded.
FRANSON, J.
WE CONCUR:
DETJEN, ACTING P. J.
SMITH, J.
7 We recognize further difficulties may arise in both the prosecution and the defense
of this action. Future difficulties, and how they should be resolved to protect each
inmate’s right of access to the courts, are necessarily beyond the scope of this opinion.
26.